05 April 2012

A federal appeals court in Boston heard oral arguments Wednesday on the landmark rulings that found a key provision of the Defense of Marriage Act unconstitutional. The hearings were also the first time that DOMA has been argued in a federal appeals court.

The historic hearings in the First Circuit were followed two July 2010 rulings by a federal judge in Boston that struck down Section Three of the Defense of Marriage Act. Section Three prohibits federal recognition of same-sex couples and denies all federal benefits, such as Social Security and health care. U.S. District Judge Joseph Tauro, a Nixon appointee, ruled in two separate cases brought by the Commonwealth of Massachusetts and Boston-based Gay & Lesbian Advocates and Defenders (GLAD).

Stuart Delery, who’s gay and the Justice Department’s acting assistant attorney general for the civil division, surprised many when he said the Obama administration wouldn’t defend DOMA on any basis, including under rational basis review.

Last year, the Obama administration said it would no longer defend DOMA in court, on the basis that President Obama had determined that the anti-gay law fails heightened scrutiny because it discriminates against gay couples. Asked by Judge Juan Torruella whether the administration has a position on the rational basis test for the law, Delery replied, “We don’t.”

Delery’s position is significant because U.S. District Judge Joseph Tauro in 2010 ruled in favor of plaintiffs on the basis that DOMA didn’t pass the rational basis standard review, or a rational means to a legitimate governmental end. Judges on the First Circuit will have to decide whether to affirm or overrule this decision.

Delery maintained that the name “DOMA” itself indicates that the anti-gay law was intended to discriminate against LGBT families. "It was a defense against something, and that something was same-sex couples," Delery said.

Defending the anti-gay law in federal appeals court was Paul Clement, the former solicitor general in the George W. Bush Administration. House Speaker John Boehner hired Clement last year to advocate for DOMA on behalf of the Bipartisan Legal Advisory Group, which voted along party lines to take up defense of the law.

04 November 2011

One-hundred and thirty-three members of the 192-strong House Democratic caucus have filed an amicusbrief siding with groups challenging the Defense of Marriage Act, saying that the provision denying same-sex married couples federal rights is unconstitutional.

House Minority Leader Nancy Pelosi announced the filing yesterday on Twitter. Pelosi and other members who signed the brief argue "that the key section of the law is unconstitutional because it was passed quickly, driven by biases and lacks 'a rational relationship to any legitimate federal purpose,'" reports Politico.

In the brief, the members—including House Minority Leader Nancy Pelosi, Democratic Whip Steny Hoyer and Reps. Jerry Nadler, John Conyers, Barney Frank, Tammy Baldwin and Jared Polis, among others — state that Congress "acted hastily" when DOMA was enacted.

The Obama Administration announced in February that it will NOT defend recent lawsuits challenging DOMA. House Speaker John Boehner (R-OH) has hired counsel through the Bipartisan Legal Advisory Group to defend DOMA's constitutionality.

The brief was co-signed by the entire House Democratic leadership, most of the Progressive Caucus and most of the Congressional Black Caucus, including John Conyers, Maxine Waters, Eleanor Holmes Norton, Barbara Lee, Jesse Jackson Jr., Chaka Fatah, Emanuel Cleaver and many others.

20 August 2010

Two quick updates on last month's landmark rulings by a federal judge in Boston that found Section Three of the Defense of Marriage Act is unconstitutional. Section Three prohibits federal recognition of same-sex couples and denies all federal benefits, such as Social Security and health care.

Simultaneously, a 60-day stay was issued
pending any appeal by the government to the U.S. Court of Appeals for
the First Circuit. The Department of Justice now has 60 days to decide whether to appeal and is expected to do so.

GLAD did not oppose DOJ's request for a stay pending appeal because it wants the "certainty of knowing that their Social Security payments, health
insurance costs, or tax refunds are not potentially subject to repayment." And the organization ultimately wants "clarity for married same-sex couples around the country," says GLAD's Mary L. Bonauto. "We are more than ready to deal with an appeal. We have confidence in the strength and justice of our case."

Judge Tauro also ruled in Massachusetts v. Health and Human Services—brought by Massachusetts AG Martha Coakley—that DOMA was unconstitutional. The full opinions are HERE.

Gill was filed
in March 2009 and is considered
by many to be one of the best—if
not the best—surgical challenge to DOMA. GLAD also won the Goodridge case that mandated marriage equality in Massachusetts.

10 July 2010

The Obama Administration has remained silent on Thursday's bombshell rulings by a federal judge in Boston that found Section Three of the Defense of Marriage Act is unconstitutional. Section Three prohibits federal recognition of same-sex couples and denies all federal benefits, such as Social Security and health care.

The Administration is expected to appeal the two rulings by U.S. District Judge Joseph Tauro. A spokesperson for the Justice Department says officials are "still reviewing" the decisions. Boston-based Gay & Lesbian Advocates and Defenders (GLAD), which filed Gill v. Office of Personnel Management, says it welcomes the apppeal. "It would be unusual if they didn't," says GLAD attorney Janson Wu. "Typically, when a court strikes down a law as unconstitutional, the government appeals it. We think that would be good ... We're confident we'll win."

Gill was filed
in March 2009 and is considered
by many to be one of the best—if
not the best—surgical challenge to DOMA. GLAD also won the Goodridge case that mandated marriage equality in Massachusetts.

08 July 2010

Two huge wins for equality. In two separate cases, a federal judge in Boston ruled a significant part of the Defense of Marriage Act (DOMA) unconstitutional. U.S. District Judge Joseph Tauro ruled Section 3, which prohibits the federal government from recognizing same-sex marriage and denies all federal rights and protections to same-sex couples, violated the 10th and 5th Amendments.

The first case was brought by the state of Massachusetts. In Commonwealth of Massachusetts v. Health and Human Services, Judge Tauro ruled that Congress violated the
Tenth Amendment when it passed DOMA in 1996 because it interferes with a state's right to define marriage. The second case, Gill v. Office of Personnel Management, was brought by Boston-based Gay & Lesbian Advocates and Defenders (GLAD). Tauro ruled that DOMA violates the Fifth Amendment's Equal protection clause.

Massachusetts was brought by attorney general and one-time senate candidate Martha Coakley. The final paragraph in Tauro's decision is worth noting:

This court has determined that it is clearly within the authority of the
Commonwealth to recognize same-sex marriages among its residents, and
to afford those individuals in same-sex marriages any benefits, rights,
and privileges to which they are entitled by virtue of their marital
status. The federal government, by enacting and enforcing DOMA, plainly
encroaches upon the firmly entrenched province of the state, and, in
doing so, offends the Tenth Amendment. For that reason, the statute is
invalid.

The federal government—the Obama Administration, the Department of Justice, the Department of Health and Human Services and the Office of Personnel Management—lost these cases. It will be very interesting to watch their response—especially that of OPM, which is headed by John Berry, the highest-ranking
openly gay manin the Obama Administration. Will they drop the cases and say a federal judge forced their hand? Or will the Administration appeal to "uphold the law" because "it's their job"?

"Carcieri vetoed the measure because he said the law already addresses actions "motivated by racial, religious, sexual orientation, gender or disability prejudice." ... Gay and Lesbian Advocates and Defenders encouraged LGBT Rhode Islanders to urge their legislators to override Carcieri’s veto. 'It’s a simple bill but critical for protecting transgender citizens from violence and harassment - protection all Rhode Islanders deserve,' said GLAD executive director Lee Swislow in a statement. Other LGBT activists criticized the governor’s veto. 'The governor of [RI] has once again shown his disdain for LGBT Rhode Islanders, especially his utter lack of caring about transgender people who face immense harassment and violence based on how they present their gender,' said Susan Heroux of Queer Action. 'One wonders what the governor would do if one of his grandchildren turns out to be gay or transgender. Would he continue to not care about us?' The Family Research Council, however, praised Carcieri’s actions."

House Speaker Gordon D. Fox, who is black and openly gay, criticized the governor's action but added "no decision has been made" on a veto override.

07 May 2010

On Thursday, lawyers with Boston-based Gay & Lesbian Advocates and Defenders (GLAD) presented oral arguments challenging the Defense of Marriage Act (DOMA). Gill v. Office of Personnel Management, which targets DOMA's Section Three, is the first major DOMA challenge and is likely to end up before the Supreme Court. GLAD's Mary Bonauto is the lead attorney.

"Bonauto argued
in US District Court that the federal government had always let states
decide who was legally married until it passed the law in question. 'Your honor, the only thing that changed
here was who was going to marry,' Bonauto told US District Court Judge
Joseph L. Tauro. Bonauto alsoled the lawsuit that resulted in the
landmark 2003 decision by the state Supreme Judicial Court legalizing
gay marriage in Massachusetts.

Bonauto said that because of the law, the
federal government treats the plaintiffs — seven gay and lesbian couples
and three men whose husbands have died — as second-class citizens. They
are ineligible for numerous federal benefits that heterosexual couples
receive, including health insurance for spouses of federal employees,
retirement and survivor benefits under the Social Security Act, and
eligibility to file joint federal income tax returns."

"The Obama administration’s Justice Department was in the position of defending the law, just as it had done in a case last year, even though Barack Obama had called during the 2008 presidential campaign for repealing it. Advocates for gay rights have said they have little hope that Mr. Obama will actively seek a repeal, given the political climate and the priority of other issues. Scott Simpson opened by
acknowledging the administration’s opposition to the act, but saying he
was still obliged to defend its constitutionality. 'This
presidential administration disagrees with DOMA as a matter of policy,'
Mr. Simpson said. 'But that does not affect its constitutionality.'

The
act was passed by Congress and signed into law by President Bill
Clinton in 1996. Mr. Simpson, who asked the judge to dismiss the
case, said Congress was initially motivated to pass the act because one
state, Hawaii, was starting to consider whether to legalize same-sex
marriage. And now that five states and the District of Columbia have
legalized it, he said, the act spares the government the trouble of
keeping track of different laws in different states. To that
argument, Ms. Bonauto told the court, 'We’re not talking about
mom-and-pop operations here; we’re talking about the federal
government.'"

After the hearing, Bonauto talks to the press—audio is not the best—AFTER THE JUMP ...

06 May 2010

Near the close of oral arguments in GLAD's Defense of Marriage Act challenge, a fire alarm reportedly forced the evacuation of the entire court building, Lisa Keen of Keen News Service tweets everyone is being allowed to return, unknown why the alarm was triggered ...

Oral arguments began this morning in U.S. District Court in Boston on the constitutionality of the Defense of Marriage Act (DOMA). The case is brought by Gay & Lesbian Advocates and Defenders (GLAD) and is known as Gill v. Office of Personnel Management.

The lawsuit is on behalf of seven married same-sex couples and three widowers. It specifically targets Section 3 of DOMA, which prohibits the federal government from recognizing same-sex marriage and denies all federal rights and protections to same-sex couples. It is considered to be the first serious challenge to DOMA. GLAD is live-tweeting developments. Follow @GLADLaw or search #DOMA.

The hearing will address the central issue of the case – is DOMA constitutional? –six years after the first same-sex couples in the country started marrying in Massachusetts, the result of GLAD’s groundbreaking marriage case, Goodridge v. Department of Public Health. Arguing before U.S. District Judge Joseph L. Tauro on behalf of seven married same-sex couples and three widowers will be Mary L. Bonauto, GLAD’s Civil Rights Project Director. Bonauto was the lead attorney in Goodridge.

As a result of DOMA, passed by Congress in 1996, plaintiffs in GLAD’s lawsuit have been harmed in various ways, including denial of survivor benefits on a deceased spouse’s pension; denial of health insurance coverage for a spouse on a federal family plan; denial of Social Security death and widower benefits; and the payment of extra federal income taxes due to the inability to file jointly as married. In opposing the government’s Motion to Dismiss and arguing in favor of the Plaintiffs’ Motion for Summary Judgment, GLAD will assert that DOMA Section 3 violates the federal constitutional guarantee of equal protection as applied to federal income taxation, Social Security benefits, and federal employee and retiree benefits.

28 April 2010

Columbia University track star Cory Benton pens a thoughtful essay on coming out to his team and coach at Outsports. To his surprise, Benton says the team's response was much better than expected because "[c]oming out was hard for me because of my childhood." Benton feared coming out in high school because
of the "additional cultural stigma" of being black and gay.

"There is this stigma that comes with being gay, and an additional
cultural stigma attached for being African American and gay, so coming
out was not an option for me in high school, although many people
already assumed I was gay. I knew no other African-American gay athlete
to seek support from, so I made the conscious decision to continue
hiding my sexuality and become something I wasn’t. It ate away at me
every day, and I felt so uncomfortable with myself. How could I make
these everlasting bonds with people while hiding something that is so
important to me?"

Out former professional basketball player John Amaechi also talks about the "double
prejudice" of being a black gay athlete, vis a vis black male athletes are supposed to be the epitome of masculinity and heterosexuality,

"I was often made fun of for acting 'white' because most of my friends
were Caucasian. I was ostracized from the African-American community in
my hometown because I never fit in. I did have African-American
friends, but most of my friends were white. As I got older, not using
Ebonics seemed to have the effect of branding me as “white” and
homosexual. I remember I was doing some homework in the library one
evening and two people I knew, both African-American, were sitting at
the same table a little further down. They were close enough that I
could hear their conversation. One asked if they should sit closer to me
and hang out; The other responded negatively saying that I was “too
gay”. The other person’s jaw dropped and asked how he knew this. He
said, 'Just go talk to him. Listen to the way he talks and look at the
way he dresses. He’s so white.'"

Benton is a senior and 400 meter sprinter. He was part of the 4x400m relay team
that set a new outdoor record at the 2007 NCAA Regional championships,
among other events,.according to the Columbia athletics. Sounds like he will go the distance in his chosen field, and, will be a role model to others.